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Justices Show Their True Colors

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The recent Supreme Court ruling overturning a Texas sodomy law has received a great deal of attention from “gay rights” groups, Christian conservatives, and just about everyone in between, all ready to offer their opinion of how the Court’s decision will affect future legislation, federalism, and social conduct in America. Enough on these topics can and will be discussed in the nation’s editorial pages, Internet publications, academic journals, and law reviews.

But what is most interesting about the ruling is the decidedly libertarian language used in the majority opinion, which was handed down over the fervent protestations of three dissenters — all of whom are touted by the political right as guardians of the Constitution — and the scarily unlibertarian thinking behind their objections to overturning the law.

If conservatives are to be believed, they are basically libertarians. They are constantly assuring real libertarians that a vote for conservatives, particularly conservative presidential candidates, is ultimately a vote for libertarianism because, well, we’re all basically on the same side anyway.

This assumes, of course, that the political Left offers nothing of value in the realm of deciding the proper range of government and the law, and that it is really a case of “us” — that is, conservatives and libertarians — versus “them,” the evil leftists and their socialist, authoritarian, anti-American agenda. Obviously, this tactic serves the interests of the Republican Party quite well.

Conservative commentators such as Ann Coulter, Rush Limbaugh, and Sean Hannity love to cozy up next to libertarianism by constantly appealing to the concepts of “freedom,” “property rights,” “individual liberty,” “constitutionally limited government,” and the like, perhaps in hope that something approaching a legitimate philosophical worldview will leap from their rhetoric to permeate their actual, concrete policy proposals.

Ironically, for our purposes here, it is on the issue of Supreme Court justices that libertarians are particularly cautioned against tipping the scales in favor of a “liberal” president and thus giving leftism one more shot at stacking the bench and further undermining the Republic as envisaged by the Framers. It’s better to vote for the lesser of two evils, they say, than to vote one’s conscience and give the election to a Democrat who will nominate justices with no respect for the Constitution, limited government, or individual freedom.

In short, a conservative government may not be perfect, we’re told, but it will ensure a Supreme Court that at least tries to uphold the original ideals of the Framers. Therefore, conservatives use phrases such as “libertarian strain” and labels such as “libertarian-conservative,” “originalist,” and “strict constructionist” to rally libertarian support for their much-vaunted appointees to the court.

As a result, freedom lovers should allegedly rest easier with Supreme Court justices such as William Rehnquist, Clarence Thomas, and Antonin Scalia — all appointed by Republican presidents: Rehnquist by Nixon, Scalia by Reagan, and Thomas by George H.W. Bush — keeping big government in check through the sound, “basically libertarian,” philosophical reasoning of conservatism.

So it must have come as a bit of a surprise for those honest enough to objectively evaluate both the majority and minority opinions in the Texas case to see that it was not the good old conservative or “strict constructionist” justices, Rehnquist, Thomas, and Scalia, who carried the day and whose language was most in tune with this nation’s libertarian founding principles.

Instead, they were found spastically offering only statist rationalizations that blatantly exposed their own authoritarian agenda — while their antagonists were building a solid constitutional argument that would make Thomas Jefferson blush with pride.

Compare the following excerpt from Justice Kennedy’s majority opinion:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition [!] the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct. [Emphasis and brackets added.]

At the risk of sounding like a giddy adolescent: Wow! Isn’t that precisely the kind of thing one would hope to hear from the lips of a High Court justice? A radical improvement could certainly be made, specifically by adding “or anything else that does not violate the rights of another person” at the end, but to say the least, it ain’t a bad start. And note Kennedy’s reference to the American tradition of government, which places the individual on a plane above the state and limits government’s domain over individual preferences. Kennedy continued,

Adults may choose to enter upon … relationship[s] in the confines of their homes and their own private lives and still retain their dignity as free persons…. The State cannot demean their existence or control their destiny by making their private … conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. [Emphasis added]

Unfortunately, in this case the majority waxed so eloquently on the virtues of limited government only as it pertains to the regulation of homosexual conduct. No libertarian will deny that the political Left reserves to itself the convenient and selective application of words such as “liberty,” “freedom,” and any “promise of the Constitution” to those issues which it arbitrarily deems worthy of constitutional protection.

Still, their words make an excellent libertarian argument, lay a brilliant philosophical foundation, and easily open the door for greater future expansions of personal freedom and the nullification of the “intervention of the government” in the ability of free men and women to “control their destiny.” In describing the limits of state power, the Kennedy majority all but beg for challenges to the nation’s drug and prostitution laws (“Liberty presumes an autonomy of self [and] [t]he State cannot demean [the citizen’s] existence or control [his] destiny by making … private … conduct a crime”).

Clearly, it is in fear of just such a legal development that the dissenting judges raised a predictable protest, possibly to preempt anyone’s making such a logical deduction. Justice Scalia wrote blisteringly for the dissent,

[The Texas sodomy law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution [and] recreational use of heroin…. This [decision] effectively decrees the end of all morals legislation. If … the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive … review.

Which is exactly why those laws ought to be overturned, as well! But pretending, without philosophical justification, that this course of arbitrary reasoning miraculously settles the argument in his favor, Scalia proceeds down a road that is anything but consistent with the original intent of a Constitution designed to protect individuals against government power:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of … behavior are immoral and unacceptable, the same interest furthered by criminal law.

Laments Justice Scalia, “[The majority promotes] the opposite conclusion.”

But isn’t it to protect the rights of citizens, and not enforce their cultural, religious, or moral beliefs on a minority, that government exists in the first place? Isn’t it the job of government — in which the judicial branch plays a powerful and important, if often-forgotten role — to protect individual citizens against the majority opinions of other citizens, so long as their actions do not forcibly or fraudulently violate the rights of others, and isn’t that what ultimately defines conduct as either criminal or not?

Wasn’t the Bill of Rights meant to stand as a bastion against majoritarian imposition, should the greater number of citizens ever begin to view unpopular peaceful behavior, such as certain religious practices, associations, or speech, as “immoral and unacceptable”?

It isn’t just surprising to hear conservatives making arguments that so callously contradict their alleged libertarian sentiments — it’s infuriating that they should end up, in a dogmatic allegiance to their own social agenda, contorting themselves in order to promote it, at the expense of the very libertarian message they should be cheering! They’ve put themselves in the rather awkward position, on hearing someone articulate a brilliant defense of limited government and the supremacy of individualism, of foolishly shouting “Nuh-uh!” Their words aid the growth of tyranny, not freedom.

The dissenters in this case shouldn’t be criticizing the majority — they ought to be writing their own concurring opinions, with the stipulation that such views of freedom and liberty be extended to areas of social interaction contradictorily avoided by the Left, such as freedom from oppressive taxation, gun control, and business regulation and licensing, and the promotion of free trade, free markets, and medical freedom.

Think of the fun they could have, quoting the majority back to itself by promoting such liberties on the grounds that “there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes … certain … conduct … a realm of personal liberty which the government may not enter.”

But this would require that conservatism be a political philosophy that takes itself seriously.

For while once upon a time “conservative-libertarian” judges at least fought against government’s tentacles stretching into the economic sphere, specifically during the 40-year heyday of economic due process in the first part of the 20th century, they today even embrace the demise of conservatism’s one traditional affiliation with libertarianism: economic liberty. In his dissenting opinion, Justice Scalia rejected using freedom as an argument to overturn the sodomy law, because it could then be equally applied against laws regulating “working more than 60 hours per week in a bakery.”

“[T]here is no right to liberty under the Due Process Clause,” he asserts with finality. That sound you hear is the Constitution going down Justice Scalia’s toilet.

In their lust for government authority over people’s personal lives, conservatives have now completely abandoned any pretense at standing for individual liberty, even in the field of Americans’ economic activities, lest the promotion of any kind of liberty be used to kill their sacred cow: the legislating of morality. Their reasoning seems to be the equivalent of sinking their own boat to ensure that their ideological enemies drown with them. Hardly a sound foundation for the Republic.

It could certainly be argued that in a truly federalist system the best thing for the Court to have done is to refuse to hear this case. Leaving the problem to be settled at the state level might have been wisest, although it would have conflicted with an expansive view of the Fourteenth Amendment. Libertarians, conservatives, liberals, and moderates will be debating with each other and amongst themselves over that particular aspect of the Texas sodomy case for years to come.

But the Court did decide to review the case on Due Process grounds, and it therefore had a moral responsibility to rule in favor of the individual. In a nation born under the banner of individual rights, nothing else would have been acceptable under those circumstances.

Still, despite the majority’s libertarian-sounding decision, limited-government advocates shouldn’t start celebrating a new era of constitutionalism just yet. Hearing the language of freedom from our nation’s highest court may well be exhilarating, but it’s also destined to be short-lived. Rest assured that when the tables turn, and the issue before the Court is one of economic freedom or gun rights, those who today trumpet the sanctity of the citizen over the State will tomorrow quickly abandon libertarianism for authoritarianism.

We’ve come to expect this from left-wing justices, but at least they remain true to their chosen issues, however inconsistent they may be at applying their philosophy to broader notions of freedom.

Conservative justices, on the other hand, can’t even do that much. They’ve got nothing left now but lofty-sounding labels to dangle above the accolades to liberty they have completely forsaken.

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    Scott McPherson is policy adviser at The Future of Freedom Foundation. An advocate of the Free State Project, he lives in Portsmouth, New Hampshire.